Sentencing Children: Overarching Principles Revisited

‘Youths’: A Terminological Re-think

Though initially minded simply to retain the language of the 2009 guidance title, the Council was persuaded by respondents who argued either that reference to ‘youths’ or ‘young offenders’ was counter to welfare-centred principles that require young defendants to be considered as ‘children first and offenders second’ (Howard League, 2016), thus avoiding a form of labelling that serves to entrench them in a negative identity or was open to question on the basis that ‘youths’ lacks any clear basis in statutory definition (Law Society, 2016). Accordingly, the Council opted to refer to ‘children and young people’. ⁴

‘Youth’ is not without a legislative footprint. The Criminal Justice Act (CJA) 1982 s.6 (now repealed) introduced ‘youth custody’ as a disposal for those aged 15 up to (and including) 20, in other words a hybrid overlapping juvenile justice with young adult sentencing. Having lost civil law child care responsibilities as part of the reforms introduced the Children Act (CA) 1989, juvenile courts were soon renamed youth courts by CJA 1991 s.70 to reflect the preponderance of 15- to 17-year-olds as the newly styled courts’ core business. The Crime and Disorder Act 1998 had Chapter parts dedicated to ‘youth crime and disorder’ and ‘youth justice’, introducing ‘the principal aim of the youth justice system’, youth justice services, youth offending teams and the Youth Justice Board.

As for ‘children and young persons’, this categorisation scheme can be traced in statute back to the Summary Jurisdiction Act 1879 (which distinguished a child for the purposes of having the benefit of summary trial by reason of being aged under-12) and the Children’s Act 1908 (which raised that cut-off point to under-14). Thereafter, in the Employment of Women, Young Persons, and Children Act 1920, a young person was defined as ‘a person who has ceased to be a child and who is under the age of 18’. This was followed by a sequence of Acts titled Children and Young Persons Act (C&YPA), the first being enacted in 1932, swiftly followed by the consolidating C&YPA 1933 (in which ‘young person’ was defined (s.107) as ‘a person who has attained the age of 14 years and is under the age of 17 years’.

Meantime, the Children Act 1989 had identified ‘child’ in the context of public and private family law to mean any person under the age of 18. There followed the reforms of C&YPA 2008 wherein ‘child’ retained the 1989 meaning, ‘young persons’ serving to cover the role of local authorities in respect of those who have been ‘looked after’ by the state to whom continuing responsibilities for their well-being are owed up to them attaining age 25. It seems valid to observe that continuing ‘child’ status is more readily accorded for civil and safeguarding purposes and in recognising children as victims than for criminal law measures.

International-Mindedness

The 2009 Guideline had included the reminder:

… a court sentencing a young offender must be aware of obligations under a range of international conventions which emphasise the importance of avoiding ‘criminalisation’ of young people whilst ensuring that they are held responsible for their actions and, where possible, take part in repairing the damage that they have caused. (para. 1.3)

Disappointingly, the Council’s 2016 draft made more muted reference to international provision, stating (a) that ‘under both domestic law and international convention [without any citation], a custodial sentence must only be imposed as a “measure of last resort”’ (para. 5.42) and (b) (in the context of the making of a fostering requirement within a youth rehabilitation order) to rights to family life under Article 8 of the European Convention on Human Rights (para. 5.38). This prompted the House of Commons Justice Committee (2016) to respond:

… it is desirable for the guidelines to make specific reference to international conventions, in particular the UN Convention on the Rights of the Child [UNCRC: UN, 1989], where these are relevant to the drafting of the guidelines. As the term ‘international convention’ implies they are vague or non-binding, we recommend the Sentencing Council replace the term ‘international convention’ with ‘international law’.

Other respondents also urged the Council to be more up-front in this regard. The Definitive Guideline duly includes reference to ‘Domestic and international laws’ within the initial section addressing ‘Sentencing Principles’ (para. 1.3) but still in the context of custody being a ‘last resort’ and without reference to UNCRC Article 37(b), the authoritative source of the principle. Furthermore, no mention or allusion is made to UNCRC Article 40 which identifies

the right of every child … recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. ⁵

That said, the revised guideline places stronger emphasis on the aim of reintegration. Compare

Within a system that provides for both the acknowledgement of guilt and sanctions which rehabilitate, the intention is to establish responsibility and, at the same time, to promote reintegration rather than to impose retribution. (SGC, 2009: para. 1.3)

with

… the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish. Restorative justice ⁶ disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence may have had on others. (SC, 2017a: para. 1.4)

Child Development and Culpability

Though the new guideline does not acknowledge as plainly as it might that children who offend are still at a relatively early stage of maturational development with obvious implications for distinguishing them for legal liability purposes from adults, including the determination of their level of culpability and to the importance of (a) promoting that maturation and (b) avoiding measures that are likely to undermine same, it goes further than its predecessor in expecting sentencers to ‘bear in mind any factors that may diminish the culpability of a child or young person’ (para. 1.5), adding,

Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person’s age their emotional and developmental age is of at least equal importance to their chronological age (if not greater).

Furthermore, children ‘should, if possible, be given the opportunity to learn from their mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on [their] prospects and opportunities … and hinder their re-integration into society’ (para. 1.6). Though invited by some respondents to make specific reference to fast developing insights from neuroscience regarding the developmental maturation of the brain into young adulthood, ⁷ impacting the ability of a juvenile to regulate his or her behaviour the Council declined, save for asking courts to be alert to ‘any experiences of brain injury or traumatic life experience’ ⁸ (para. 1.12).

Deterrence as a Valid Aim of Sentence

Whereas the 2009 guideline had not identified deterrence as a consideration in sentencing youths, the Council has opted to specify that ‘deterrence can be a factor in sentencing young offenders although normally it should be restricted to serious offences and can, and often will, be outweighed by considerations of the offender’s welfare’ (para. 1.9). The Council had regard to the statutory recognition given to deterrence as one of the purposes of sentencing when dealing with offenders who are over 18 on the date of conviction, as required in CJA 2003 s.142(1)(b) (‘the reduction of crime (including its reduction by deterrence)’). Though acknowledging that the equivalent purposes for the under-18s provided by s.142A (inserted into the 2003 Act by the Criminal Justice and Immigration Act 2008) does not include that provision, the Council observed that this amendment had not been brought into effect and that ‘unless and until that happens’ it was right to pursue deterrence as a goal when sentencing children. Neither the statute nor the Council has sought to distinguish between individual and general deterrence in this context but in support of its case the 2016 draft cited R v DS and others [2012] EWCA Crim 1470; [2013] 1 Cr. App. R. (S.) 64, involving boys and young adults convicted of false imprisonment and blackmail, having detained another boy aged 14 over an extended period in an attempt to extract £20,000 from his mother, during which they had subjected him to gratuitous ill-treatment amounting to torture. In dismissing DS’s appeal against sentence of 7 years detention, the Court of Appeal endorsed the validity of pursuing general deterrence. ¹¹

Though the Council had not posed a specific consultation question regarding this innovation, the exercise generated several responses expressing disagreement on the basis that this would be ‘a retrograde act’ ‘not in keeping with the principles of acting in the best interests of the child’s welfare and preventing further offending and that there is no supporting evidence for its effectiveness’ (2017b). ¹² Unmoved, the Council responded that reference to deterrence should stand (now in 2017a, para. 1.10) because (a) ‘the legislation as it currently stands does include’ reference to deterrence (appearing to overlook that the statutory provision does not apply to under-18s) and (b) the Council has ‘sought to ensure that this legislative principle is used sparingly’ when dealing with young defendants.

Concluding Note

There is much to be welcomed in the Council’s revamp of the overarching principles that should govern juvenile justice and the revised guideline should serve as a valuable introduction for an international audience to the values adopted in this jurisdiction and also to our management here of the tensions posed in seeking to pursue a distinctive child-centred approach within a mainstream criminal justice agenda. ¹³ Among positive revisions not mentioned above within the ambit of this brief commentary, attention should be given to the Council’s receptiveness to advice in respect of: (a) ‘looked after children’ and the impact that a custodial sentence may have on a young person’s ability to accrue leaving care rights (para. 1.17); (b) the over-representation of black and minority ethnic children in the youth justice system (para. 1.18); ¹⁴ (c) refining guidance on the identification of ‘persistent offenders’ (a category that can attract certain disposals, including a detention and training order when a child is aged 12–14; see Stone (2001)) (para. 6.8).

The new guideline can still be criticised, not least for a shortfall between the principles covered in Section 1 and the specifics and applications in ensuing Sections. Furthermore, it might be said that the identification of personal mitigation (para. 4.7) unduly reflects generic factors, lacking a child-centred perspective, particularly from the (disad)vantage point of a child who has had little opportunity to ‘integrate’, let alone reintegrate. Can a child be expected to evidence remorse, a quality of questionable merit in any circumstances, or a developed understanding of the effect of their conduct on the victim, or ‘good character and/or exemplary conduct’? However, the Council has expressed caution in not wishing to exceed its mandate by straying unduly from the boundaries of current law and has pointed to the lack of consensus among respondents. Future Commentaries will follow with interest the appetite of the courts to apply the guideline. Meantime, some instruction can be taken from the recent decision of the Court of Appeal in R v G., ¹⁵ judgment being given before the definitive guideline was published but nevertheless an illustration of child-centred principles in action.